The Azerbaijani parliament adopted the new controversial law 'On the Media' on December 14 at the first reading. It is expected to be signed by President Ilham Aliyev and go into effect starting 1 January 2022.

While the draft law was already in motion as early as April following Aliyev's creation of the Media Development Agency in January, its contents had been kept strictly secret until now.

The new law will bring in new restrictions on outlets and effectively limit journalistic freedom. The law envisages the creation of a registry of journalists, and demands that owners of media outlets be Azerbaijani residents. The law will ban foreigners or stateless persons, as well as a person without higher education, from the position of the head of the governing body of a media entity.

According to MP Bakhtiyar Sadigov, editor-in-chief of the newspaper Azerbaijan, national security is a top concern of the law. "Although all of this is viewed through the prism of freedom of speech, national interests require that certain threats be prevented and dealt with – especially in terms of increasing the transparency of the information producer. Today, the protection of the information security of the state is one of the most important issues. Therefore, the continuous improvement of media legislation, taking into account innovations, as well as unfavourable trends should not be overlooked."

According to Reporters Without Borders, Azerbaijan ranks 167 out of 180 countries in the world rankings for press freedom as of 2021 with a score of 58.77. The new law certainly will push the rank to a lower level.

Several Azerbaijani veteran journalists and public figures have joined together to sign an appeal to revisit the draft and amend it. According to the signatories, the project opens up a wide range of opportunities for the state to determine who can engage in journalism.

They argue that requiring the state to create a register for journalists, to establish difficult conditions for the register, to apply a single card rule, to ban journalists from disseminating all information obtained in secret, can inflict incurable wounds on media freedom, which is an important component of the right to freedom of expression.

bne IntelliNews asked several Azerbaijani journalists and activists to comment on the new law.

Prague-based veteran Azerbaijani journalist Rovshan Aliyev, who has worked for Radio Free Europe/Radio Liberty, said the law contained provisions that violate fundamental human rights. According to him, it is clear that the government is trying to take over the news media, while the media should be containing the government.

According to activist Giyas Ibrahimov, after the last war between Azerbaijan and Armenia, the Aliyev government became more legitimate in society. "The new media law now being passed in Azerbaijan is a sign that the government is abusing such political legitimacy to legally inflict a final guillotine on a very weak independent media that is already under pressure.”

Habib Muntezir, Berlin-based anchorman at Meydan TV, told bne IntelliNews that the draft represented a cultural return of censorship.

“In no case does it meet modern media standards and international media rules. The fact that the draft law was not submitted for public discussion and the hasty attempts to approve it is in fact due to the fact that the experts in this field, the people involved in this field, have no influence, contribution or will. In this regard, I do not support this bill in any case, and I think it should be revised," he said.

Interpretation up to officials' imagination

İlkin Hüseynli, a PhD student in political philosophy at the University of Milan working on conceptual analyses of freedom, told bne IntelliNews that it is obvious that the new law introduces even more restrictions on media by increasing government control, under various auspices, on media outlets, journalists as well as ordinary citizens.

According to him, the law proposes stipulative definitions of the key terms at the beginning and it seems that those terms are not clearly defined, which will create numerous problems in the interpretation of the law in the future.

"The law defines mass media as “information published by media subjects” while media subject is defined as “a physical (excluding journalists) or legal entity whose main activity is the publication of mass information”. It seems that by the physical entity the law refers to media organizations such as newspapers or websites.

“What is interesting, however, is that journalists are excluded from the definition of media subject. If a journalist creates an organization (i.e. radio), then that organization rather than its owner will be considered a media subject. But it does not mean that the law does not regulate the activities of journalists because Article 3.1. explicitly includes journalists within the jurisdiction of this law. So, a journalist who owns a radio station will be affected by this law in his capacity as a journalist and a media subject. What it means is that s/he will be subjected to more restrictions," he wrote in an e-mail interview.

According to him, one of the reasons behind the exclusion of journalists from the definition of media subjects is to impose more restrictions on journalists and/or media organizations led by them. A journalist who owns a radio station will also be subjected to the restrictions imposed by other regulatory bodies such as the National Television and Radio Council, which has tremendous power over media entities.

Hüseynli casts doubts about the so-called "democratic content" of the law: "Anybody and anything – bloggers, influencers, ordinary citizens, other physical and legal entities – whose main activity is not the publication of mass information are also excluded from the definition of media subject. What about those persons or entities who sometimes publish (mass) information on different platforms? If, as an ordinary citizen or a famous blogger, I publish (mass) information on a news website or on Twitter, according to the law, I am not a media subject. Does it mean the law does not regulate the relevant activities (whatever that means) of the aforementioned groups? The short answer - No," he wrote in an e-mail correspondence.

According to him, the new law defines media as “tools and means used to carry out the periodic or regular publication of mass information ... as well as the information environment formed by them.” As a result, media has two meanings: it is a tool and an environment. "Thus, when the law says that the government has a right to regulate media, it might be understood as government regulation of certain tools (websites, newspapers, radio, television etc.) as well as the whole (media) environment (again, whatever that means) which is formed by those tools.

“The latter interpretation gives tremendous regulative power to the government because the boundaries of the environment are set by the imagination of government officials," he said.

"This particular law does not directly regulate the relevant activities of ordinary citizens, bloggers and so on (their activities are regulated by the Law On Information, Informatisation And Protection of Information), nevertheless, their activities fall within the definition of environment, which means that this proposed law can be amended in the future also to directly regulate the activities of the aforementioned groups," he added.

Lawyer Emin Abbasov agrees, saying that according to the law, a journalist (1.1.4 and 74.2.5. as well as 75.4.) is defined as a person who works for some media subject (who has an employment or a civil contract). It means that if a journalist does not have a contract with any media subject yet publishes his/her researches on his/her personal blog (which is not considered a media subject), those publications will not be considered mass media, therefore, s/he will not enjoy the privileges the law ascribes to journalists.

End of freelancing?

The new law also envisages a mandatory labour contract for journalists affiliated with media organs. Several journalists consider this as the end of freelancing in media.

Aynur Elgunesh, editor at Germany-based Meydan TV told bne IntelliNews: "The law does not take into account freelance journalists. If a freelancer has to sell their product to any organisation and pay tax on his income, it states that a contract must be concluded with a media entity. On the other hand, the article on religious extremism states that a journalist must write the information in the form, content and volume provided by the body conducting the operation. That means you just become a scribe, not a journalist," she said.

"We understand the content, why should the shape and volume be what they want? That is, there are mistakes from the first chapter to the last chapter of the law, and its adoption in this way was a disgrace. They took half of it from Russian law and half from Turkey and prepared a meaningless word-junk," she concluded.

Anar Mammadli, chairperson of the Election Monitoring and Democracy Studies Centre, told bne IntelliNews that the law is also aimed at independent journalism and freelancers, as well as online media. "I am concerned that this law will pave the way for arbitrary blocking of any web resources in the future," he concluded.

He said Azerbaijan should have discussed this law with the Venice Commission, also known as the European Commission for Democracy through Law, and should give the public the chance to discuss the new law before adopting it in parliament.

Many share his fear that if the law 'On Media' is adopted as it is now, the next target could be social media regulations. MP Elman Nasirov, who is one of the defendants of the regulation, says anarchy reigns in social networks today: "I think that this area should be regulated by law. For this, a separate law on social networking must be adopted."

MP Nigar Arpadarai (former Press Secretary of the Formula 1 Azerbaijan Grand Prix) defended the law, saying "social media has turned into a swamp now" and "news content must be of good quality".

MP from the ruling New Azerbaijan Party Javid Osmanov defended the law for its "democratic content", pointing out what it does not cover.

"The law does not require Online TV channels to apply for a license. Unlicensed internet TV channels will be able to continue their activities without any obstacles. Permission from government agencies is not required to establish a print media and online media entity. In addition, the so-called "citizen journalism" is not a profession, but a hobby, which is not covered by this law," he said

Some hardliners, such as Deputy Chairman of the Press Council Mushfig Alasgarli even find the law too liberal: "For example, current media legislation provides for the ban of censorship on the media. However, censorship is acceptable in some exceptional cases. This applies to the period of the state of emergency and martial law in the country. Therefore, such exceptions must be noted so that we do not become the object of criticism in Europe," he said during parliamentary discussions.